Goldman v. Secretary of Defense, 82-1723

• Decision Date: 10 August 1984
• Docket Number: No. 82-1723,82-1723
• Citation: 236 U.S.App.D.C. 248,734 F.2d 1531
• Parties: 36 Fair Empl.Prac.Cas. 1566, 34 Empl. Prac. Dec. P 34,377, 236 U.S.App.D.C. 248 S. Simcha GOLDMAN, Plaintiff-Appellee, v. SECRETARY OF DEFENSE, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1531

734 F.2d 1531

36 Fair Empl.Prac.Cas. 1566,

34 Empl. Prac. Dec. P 34,377, 236 U.S.App.D.C. 248

S. Simcha GOLDMAN, Plaintiff-Appellee, v. SECRETARY OF DEFENSE, et al., Defendants-Appellants.

No. 82-1723.

United States Court of Appeals, District of Columbia Circuit.

Argued March 22, 1983.

Decided May 8, 1984.

As Amended May 8, 1984.

Rehearing En Banc Denied Aug. 10, 1984.

Appeal from the United States District Court for the District of Columbia (D.C. Civil No. 81-01522.)

Alfred R. Mollin, Dept. of Justice, Washington, D.C., with whom J. Paul McGrath, Asst. Atty. Gen., Stanley S. Harris, U.S. Atty., Washington, D.C. (at the time the brief was filed), and Anthony J. Steinmeyer, Dept. of Justice, Washington, D.C., were on the brief, for defendants-appellants.

Nathan Lewin, Washington, D.C., with whom David J. Butler and Robert A. Smith, Washington, D.C., were on the brief, for plaintiff-appellee.

Before MIKVA and EDWARDS, Circuit Judges, and SWYGERT, ^* Senior Circuit Judge for the United States Court of Appeals for the Seventh Circuit.

Opinion for the Court filed by Senior Circuit Judge SWYGERT.

SWYGERT, Senior Circuit Judge.

This is an appeal by the Secretary of Defense and the Secretary of the Air Force from the district court's order, 530 F.Supp. 12, enjoining the enforcement of an Air Force dress code regulation that had been invoked to prohibit the plaintiff, an Orthodox Jewish captain, from wearing a yarmulke for religious reasons while in military uniform. Because we believe the Air Force raised sufficient reason for prohibiting deviations from its uniformly applied uniform requirements, we reverse.

I

S. Simcha Goldman, an ordained rabbi, is an Orthodox Jew who, in accordance with his Orthodox Jewish upbringing, has since childhood observed certain Jewish traditions and laws including keeping his head covered at all times. Between 1970 and 1972 he served as a chaplain in the United States Navy, where he wore a yarmulke as a head covering while in uniform without incident. In 1973 he was admitted into the Armed Forces Health Professions Scholarship Program, which provided assistance for graduate study in exchange for a later commitment to serve on active duty in the armed services. See 10 U.S.C. Secs. 2120-2127 (1982). After completing a Ph.D. in clinical psychology in 1977 Goldman entered active service as a captain and was assigned to the Mental Health Clinic of the Air Force Regional Hospital at March Air Force Base, in Riverside, California. Between September 1, 1977, and May 8, 1981, he wore a yarmulke at all times while on duty at March. Neither before his joining the Air Force nor during his first three and one-half years in the service was he informed that wearing a head covering in addition to his uniform was problematic, although he did explain its religious significance to several co-workers and patients who inquired. Throughout his service he received consistently outstanding evaluations in each of ten specified areas from his superiors, including the category "Professional qualities (Attitude, dress, cooperation, bearing)." JA 258-67.

On May 8, 1981, Goldman was summoned by Colonel Joseph Gregory, then the Hospital Commander at March, and was told that wearing a yarmulke while in uniform violated Air Force Regulation ("AFR") 35-10. AFR 35-10 is a meticulously detailed compendium of rules governing the proper wear and combination of uniform items, classified by rank, sex, job function, season, climate, weather, occasion, country or location within a country, and other such classifications. AFR 35-10 Sec. 1-6 generally requires that "Air Force members will wear the Air Force uniform while performing their military duties, except when authorized to wear civilian clothes on duty," and AFR 35-10 Sec. 1-6(h)(2)(f) requires that "[h]eadgear will not be worn ... [w]hile indoors except by armed security personnel in the performance of their duties." Colonel Gregory informed Goldman that wearing a yarmulke in addition to the Air Force uniform, or wearing even a uniform hat indoors, would violate these regulations, and orally ordered him to cease wearing the yarmulke indoors at all places on the base except the hospital, noting that disobedience could subject him to a court-martial. Goldman's request that he be allowed to keep his head covered as required by his religious beliefs was denied. After the meeting Goldman sought legal and religious counsel, and continued to wear a yarmulke. On June 23, 1981, after negotiations by his counsel proved unsuccessful, he was summoned for another meeting with Colonel Gregory, and received a written order to cease wearing the yarmulke anywhere on the base. His request to report for duty in civilian clothing pending legal resolution of the issue was denied. The next day he received a Letter of Reprimand, and sought and received two days' emergency leave when formal processing of the reprimand began. Colonel Gregory also withdrew a recommendation that Goldman's application to extend the term of his active service be approved, and substituted a negative recommendation.

On July 2, 1981, Goldman filed this suit, challenging the regulation on first amendment grounds. The district court granted a temporary restraining order and a preliminary injunction against enforcement of AFR 35-10 pending a full hearing. At the hearing the Air Force argued that strict observance of its regulations, which are detailed and exacting as to the occasions and manner for wearing "headgear," ¹ was necessary to preserve morale (lest other members not excused from observing the largely arbitrary rules be resentful) and to instill a reflexive sense of obedience essential for military order, pride, teamwork, and image. The district court, however, discounted these arguments because the Air Force presented no objective studies to verify the assertion that exceptions for religious reasons would erode morale and obedience. It also credited the evidence presented by Goldman's expert, a military psychologist, who testified that making exceptions to the regulations for worthwhile reasons actually improved morale by dissipating hostility over minor disputes and conveying a sense of humaneness, as the military had found when it excused black members who suffered from pseudofolliculitis barbae (ingrown facial hair) from shaving; and credited Goldman's evidence that his yarmulke was unobtrusive and did not interfere with his work as a clinical psychologist. The district court therefore permanently enjoined the Air Force from prohibiting Goldman to wear a yarmulke while in uniform and from punishing him for refusing to remove it. This appeal followed.

II

The first dispute we must address concerns the proper level of scrutiny with which we must examine the allegedly unconstitutional regulation. Goldman argues that the regulation must be scrutinized strictly and may be upheld only if it is narrowly drawn and justified by a compelling interest, because it affects a fundamental right guaranteed by the free exercise of religion clause of the first amendment. See Thomas v. Review Board, 450 U.S. 707, 718-19, 101 S.Ct. 1425, 1432, 67 L.Ed.2d 624 (1981); Wisconsin v. Yoder, 406 U.S. 205, 214, 215, 221, 92 S.Ct. 1526, 1532, 1533, 1536, 32 L.Ed.2d 15 (1972); ² Sherbert v. Verner, 374 U.S. 398, 403, 406-07, 83 S.Ct. 1790, 1793, 1795, 10 L.Ed.2d 965 (1963); ³ see also Broadrick v. Oklahoma, 413 U.S. 601, 611-12, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830 (1973). ⁴ The Air Force argues that it should be upheld if it is rational, because military judgments are entitled to special deference. See Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 2365-66, 76 L.Ed.2d 586 (1983); Brown v. Glines, 444 U.S. 348, 354, 356-57, 100 S.Ct. 594, 599, 600-01, 62 L.Ed.2d 540 (1980); Parker v. Levy, 417 U.S. 733, 758, 94 S.Ct. 2547, 2562, 41 L.Ed.2d 439 (1974); ⁵ Orloff v. Willoughby, 345 U.S. 83, 94, 73 S.Ct. 534, 540, 97 L.Ed. 842 (1953). ⁶ The Supreme Court discussed a similar dispute concerning the appropriate level of scrutiny of a sex-based classification in the military context in Rostker v. Goldberg, 453 U.S. 57, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981). It rejected suggestions that consideration of the weighty interests on each side be used to refine the test under which the classification should be judged (an approach followed by some courts in analogous areas, see, e.g., Madyun v. Franzen, 704 F.2d 954, 959-60 (7th Cir.) (judging prisoners' free exercise claims under an intermediate standard), cert. denied, --- U.S. ----, 104 S.Ct. 493, 78 L.Ed.2d 687 (1983)), holding instead that

[a]nnounced degrees of "deference" to legislative judgments, just as levels of "scrutiny" which this Court announces that it applies to particular classifications made by a legislative body, may all too readily become facile abstractions used to justify a result. In this case the courts are called upon to decide whether Congress, acting under an explicit constitutional grant of authority, has by that action transgressed an explicit guarantee of individual rights which limits the authority so conferred. Simply labeling the legislative decision "military" on the one hand or "gender-based" on the other does not automatically guide a court to the correct constitutional result.

453 U.S. at 69-70, 101 S.Ct. at 2654. Under this approach we must simply judge whether the restrictions on Goldman's right to exercise his religion were authorized and justified by the power of the military to regulate itself, giving due weight to each of the conflicting interests. See also United States v. Robel, 389 U.S. 258, 267, 88 S.Ct. 419, 425, 19 L.Ed.2d 508 (1967) ("We have recognized that, while the Constitution protects against invasions of individual rights, it does not withdraw from the Government the power to safeguard its vital interests.... It is not our function to examine the validity of [a] congressional judgment [that one alternative to the...